Ninth Circuit Refuses to Cut Plaintiff Slack in Ebner v. Fresh, Inc.

Companies from Procter & Gamble and Unilever to Mars and Starbucks have recently been hit with class actions slightly different from the false advertising claims we have gotten used to seeing. Now, instead of just alleging that companies are deceiving consumers through the language used in their advertising claims, consumer plaintiffs are expanding their allegations to target visual impressions created by product packaging.

The Ninth Circuit in Ebner rejected both of these commonly-used theories, making the Court’s reasoning instructive for companies facing similar slack fill-inspired class actions going forward. But it is worth noting that this decision is no get-out-of-litigation-free card: as we will explain, companies must still pay close attention to the specific slack fill rules applicable to their products in order to minimize their exposure to these opportunistic class actions.

A “Fresh” Look at the Ebner Decision

Ebner was a resounding victory for defendant Fresh: the Ninth Circuit unequivocally held that, even if the plaintiff’s allegations were taken as true, her claims were too implausible to survive. Plaintiff Ebner had alleged that “the reasonable consumer would be deceived as to the amount of lip product in a tube of [Fresh’s] Sugar” lip balm because that “the tube’s screw mechanism permit[ted] only 75% of the total lip product to advance past the top of the tube,” leaving the remaining 25% deeper in the container—and so potentially hidden from consumers. She also claimed that Sugar’s “vastly oversized tubes and boxes”—with a total weight of 29 grams—created a “misleading impression” that each tube held more than 4.3 grams of product.

The Ninth Circuit found that “no reasonable consumer” could be deceived in the ways plaintiff alleged. “It [was] undisputed,” the court emphasized, “that the Sugar label discloses the correct weight of included lip product.” What’s more, a reasonable consumer could correct any “misleading impression” about the amount of product in each tube simply by using her eyes: “A rational consumer would not simply assume that the tube contains no further product when he or she can plainly see” the 25% left in the tube.

The court also rejected Ebner’s arguments based on “Sugar’s elaborate packaging and the weighty feel of the tube.” Given how “commonplace” these practices were in the “high-end cosmetics market,” the court explained, “no reasonable consumer expects the weight or overall size of the packaging to reflect directly the quantity of product contained therein.” The total weight of the packaging being substantially more than the actual product was simply standard market practice, not misleading.

Last but not least, the court shot down the plaintiff’s claim under California’s Fair Packaging and Labeling Act (FPLA). The FPLA provides that a package is “misleading” if it contains “nonfunctional slack fill.” As the court explained, “nonfunctional slack fill is the empty space in a package that is filled to substantially less than its capacity for reasons other than one or more of the 15 enumerated reasons listed in the statute.” In succinctly rejecting the plaintiff’s FPLA claim, the court held that Ebner had not stated a viable slack fill claim because her challenge was not directed to the amount of “empty space” in each tube; rather, she had objected to the amount of product in each tube that was not easily accessible.

What Does Ebner Mean for “Slack Fill-Inspired” Claims Going Forward?

Ebner, in short, is a powerful rebuke to slack fill-inspired claims that ask judges to ignore consumers’ sensory perceptions of a product’s size and weight in determining whether a package would mislead a “reasonable consumer.” The decision gives defendants a useful tool to knock out claims under the reasonable consumer standard—at least when these claims are premised on alleged “misleading impressions” that defy common sense and are easily contradicted by other information available to consumers.

At the same time, though, Ebner leaves open important questions about how to apply federal and state slack fill requirements, from those set forth in California’s FPLA to those promulgated by the FDA. While Ebner dismissed the plaintiff’s FPLA claim in two short paragraphs, its reasoning is not widely applicable beyond the specific flawed claim at issue there.

Plaintiffs in other cases, by contrast, routinely raise more substantive claims under the FPLA and FDA’s slack fill rules. What’s more, many of these rules provide less-than-clear guidance as to when slack fill is actually “nonfunctional,” or what requirements a product must meet to qualify for an enumerated “safe harbor.”

For example, the FDA regulations spell out 7 “safe harbors” for slack-fill; the FPLA has 15. These safe harbors protect “functional” empty space that, for example, protects the contents of the package during shipping, allows the package to be fully closed, or that houses a product delivery or dosing device. In practice, though, establishing one of these safe harbors as a defense can require extensive fact development and legal argumentation.

Consumer product companies seeking to minimize their litigation risks would do well to have a firm grounding in what the applicable slack fill rules require. In a series of forthcoming posts, we will examine these requirements in greater depth, offering a “cheat sheet” of what companies need to know about this regulatory landscape.

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Crowell & Moring is a full-service, international law firm that represents a broad spectrum of clients in the retail and consumer product industries, including wholesale and specialty retailers, department stores, and big-box retailers, apparel, cosmetics, food and beverage, consumer electronics and other consumer products companies, as well as investors in these sectors. Our clients call upon us, time and again, to help them navigate the complex legal and regulatory regimes, both domestically and internationally, applicable to the design and promotion of products and services, and to assist them in taking innovative and proactive measures to protect their business from the array of challenges before them. Our Retail & Consumer Products Law Observer blog features legal insight and thought-leadership affecting the industry.